Oregon Opens Marriage|to Same-Sex Couples

(CN) - Oregon's recognition of "a marriage of love with the same equal eye as a marriage of convenience" should extend to same-sex marriages, a federal judge ruled Monday.

U.S. District Judge Michael McShane's ruling strikes down Measure 36, which defined marriage as a man-woman union when voters passed it in 2004, as unconstitutional less than a month after he heard arguments on the ban. McShane is one of nine openly gay federal judges in the United States.

In a 26-page order, McShane noted that Oregon officials had conceded that the state's marriage law was legally indefensible after last year's landmark U.S. Supreme Court ruling that struck down the portion of the federal Defense of Marriage Act defining marriage as between a man and a woman only.

"The case presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries," McShane wrote.

After the DOMA ruling, eight gay and lesbian couples sued Oregon. Some of the couples asked officials to declare the ban on gay marriage unconstitutional, while the others asked for an order recognizing marriages from other states.

McShane said that Oregon's previous remedy -- domestic partnerships for same-sex couples -- never brought the equality couples had been promised. Couples instead encountered "institutional obstacles when lawyers, courts, healthcare and funerary service providers are unfamiliar with the rights of domestic partners," he added.

"Oregon's marriage laws weigh on the plaintiffs in ways less tangible, yet no less painful," McShane wrote. "The laws leave the plaintiffs and their families feeling degraded, humiliated, and stigmatized. Plaintiffs consider the time, energy, and sacrifice they devote to building a meaningful life with their loved ones, but find their efforts less worthy in the eyes of the law. They face a tiered system of recognition that grants greater legal status to married felons, deadbeat parents, and mail-order brides. They see no rationale for such treatment, and are angered by what they perceive as state-sanctioned discrimination against them."

The judge acknowledged the state's interest in encouraging stable families, but dismissed the timeworn justification that same-sex marriage bans protect children and families.

"Although protecting children and promoting stable families is a legitimate governmental purpose, prohibiting same-gender couples from marrying is not rationally related to that interest. To justify classifications singling out a particular class of persons, the law must, at a minimum, contain some 'factual context' tying the classification to the purpose sought to be achieved. There is no such factual context here. In fact, the relationship between prohibiting same-gender couples from marrying and protecting children and promoting stable families is utterly arbitrary and completely irrational. The state's marriage laws fly in the face of the state's 'strong interest in promoting stable and lasting families, including the families of same-sex couples and their children,'" McShane wrote, citing 1996's Romer v. Evans and Oregon state law.

He ended his ruling with an acknowledgment that his opinion would not end the debate, and an impassioned admonishment to move the same-sex marriage debate forward instead of backward.

"I believe that if we can look for a moment past gender and sexuality, we can see in these plaintiffs nothing more or less than our own families," McShane wrote. "Families who we would expect our Constitution to protect, if not exalt, in equal measure. With discernment we see not shadows lurking in closets or the stereotypes of what was once believed; rather, we see families committed to the common purpose of love, devotion, and service to the greater community.

"Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other and rise," McShane concluded.

Civil rights groups lauded McShane's ruling, which also ordered county clerks to make marriage licenses available to gay and lesbian couples immediately.

"The importance of Judge McShane's decision cannot be overemphasized," said David Fidanque, executive director of the ACLU of Oregon. "Our federal Constitution does not allow any state -- or its voters -- to deny same sex couples equal protection under the law simply because of who they are and who they love. This type of discrimination is wrong and it's also unconstitutional."

The Oregon ruling marks the 13th legal victory in a row for same-sex marriage advocates since the Supreme Court overturned part of DOMA last year. Gay and lesbians can now marry in 18 states and the District of Columbia, while federal or state judges have overturned bans or ordered states to recognize out-of-state same-sex marriages in 11 other states.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit